Texas Environmental Update: COVID-19 Note
The Texas Commission on Environmental Quality's Office of Compliance and Enforcement just this afternoon announced the establishment of an email box to accept requests for potential enforcement discretion in the instance that noncompliance is unavoidable directly due to impact from COVID-19. Regulated entities should email both OCE@tceq.texas.gov and Ramiro.Garcia@tceq.texas.gov with specific information related to enforcement discretion requests. According to the announcement, the OCE (Office of Compliance and Enforcement) email box is monitored daily by multiple TCEQ staff who will ensure the requests are expeditiously addressed. The TCEQ's goal is to provide a response to the regulated entity's request within 24 to 48 hours. The email to OCE should at a minimum include the following:
Concise statement supporting request for enforcement discretion
Anticipated duration of need for enforcement discretion
Citation of rule / permit provision for which enforcement discretion is requested
Regulated entities must maintain records adequate to document activities related to the noncompliance under enforcement discretion, including details of the regulated entity's best efforts to comply.
To date, the U.S. Environmental Protection Agency, Occupational Safety and Health Administration and the Pipeline and Hazardous Materials Safety Administration have released no public statements regarding any adjustments or flexibility on periodic environmental regulatory, permit, order, or decree requirements - inspections, training, testing, monitoring, reporting, etc. - that may become difficult as more employees work from home, as staffing is reduced to a skeleton crew, as companies implement social distancing measures for those who remain in the workplace, as consultants and other support face travel restrictions, and as supply chains for necessary tests, tools, and equipment face potential disruption. Clients have been asking us about, for example, extensions for triennial RMP audits scheduled for the coming weeks and months. While we would hope that the agencies would be understanding of delayed or omitted compliance activities during the present crisis (and so far, in our conversations with the agencies, we have found them to be open to reasonable extensions), there is currently no legal or policy assurance in place to that effect.
We would encourage our clients and friends in the environmental profession to be looking out to periodic compliance actions coming due in the March-April-May timeframe to ensure arrangements are in place to either complete those actions or to seek extensions or waivers from the relevant regulators. Likewise, if you have compliance obligations under a consent decree or other settlement document that may not be met in a timely manner, we would encourage you to make an early assessment of the relevant force majeure provisions and the procedures that often must be initiated when the regulated entity first knew or should have known about the force majeure event. Such a determination can be murky with a slow moving pandemic, as opposed to an incident at your facility.
Please stay safe.